Lindgren v. State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DENNIS LINDGREN, et al., Appellants,
v.
STATE OF ARIZONA, Appellee.
No. 1 CA-CV 19-0796
FILED 9-10-2020
Appeal from the Superior Court in Mohave County
No. S8015CR201900879
The Honorable Rick Lambert, Judge
AFFIRMED
COUNSEL
Rideout Law PLLC, Lake Havasu City
By Bradlee H. Rideout, Wendy Marcus
Counsel for Appellants
Mohave County Attorney’s Office, Kingman
By Amanda Claerhout
Counsel for Appellee
LINDGREN, et al. v. STATE
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.
C A T T A N I, Judge:
¶1 Surety Allegheny Casualty Company, bonding company
Didn’t Do It Bail Bonds, and indemnitor Dennis Lindgren (collectively,
“Appellants”) appeal from the superior court judgment forfeiting a
$100,000 secured appearance bond after criminal defendant Yefry Harrison
Arias-Saldana failed to appear for trial. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In mid-2019, the State charged Arias-Saldana with three drug
offenses. The superior court set release conditions, including a $100,000
secured appearance bond and a requirement that Arias-Saldana appear for
all further proceedings. Arias-Saldana was released from custody in late
August 2019 after Didn’t Do It and Allegheny posted the $100,000
appearance bond on his behalf.
¶3 Arias-Saldana appeared as required for the first day of trial
but failed to appear the second day. After the jury returned two guilty
verdicts, the court issued a bench warrant for Arias-Saldana’s arrest and set
a bond forfeiture hearing for the following month. The court ordered that
notice of the upcoming hearing be sent to Didn’t Do It and Allegheny, as
well as to the State and Arias-Saldana’s attorney.
¶4 Only the State and a representative of Didn’t Do It appeared
for the initial bond forfeiture hearing; neither Arias-Saldana nor his
attorney appeared. At Didn’t Do It’s request, the court continued the
hearing for three weeks to allow the bonding company additional time to
retrieve Arias-Saldana from out of state. At the continued hearing, only the
State was present; Arias-Saldana remained absent, and Didn’t Do It’s
representative did not appear. The superior court forfeited the full $100,000
bond, entering judgment against Arias-Saldana, Didn’t Do It, and
Allegheny.
¶5 Didn’t Do It, Allegheny, and indemnitor Dennis Lindgren
(who apparently gave Allegheny a deed of trust on his house as collateral
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LINDGREN, et al. v. STATE
Decision of the Court
for a large portion of the bond) timely appealed. We have jurisdiction
under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶6 Preliminarily, the State argues that Lindgren lacks standing to
challenge the bond forfeiture and asks us to dismiss the appeal on that
basis. But we have previously recognized that an indemnitor may have an
interest in property to be forfeited and thus have standing to contest a bond
forfeiture. See State v. Copperstate Bail Bonds, 222 Ariz. 193, 195, ¶¶ 13, 15
(App. 2009). And although Lindgren did not participate in the superior
court proceedings, a nonparty may appeal a civil judgment such as this in
limited circumstances, including when the judgment adversely affects the
nonparty’s legal rights or pecuniary interests in a direct, immediate, and
substantial manner. See Dowling v. Stapley, 221 Ariz. 251, 274–75, ¶¶ 76, 78
(App. 2009); Abril v. Harris, 157 Ariz. 78, 80–81 (App. 1987). As Lindgren’s
property secures the bulk of the bond that this judgment forfeited, his
potential loss is plausibly brought about directly and substantially by the
judgment itself. See Dowling, 221 Ariz. at 274–75, ¶ 78. Under these
circumstances, we decline to dismiss Lindgren or the appeal.
¶7 Appellants argue that the bond forfeiture proceeding was
rendered defective because Lindgren was not provided notice of the
forfeiture hearing and was thus deprived of due process. But while notice
to the surety was required, notice to the indemnitor was not. Under the
rule governing bond forfeiture, the court must notify the surety when
issuing an arrest warrant due to the defendant’s violation of a release
condition, and the court must notify the surety and the parties of any
forfeiture hearing. Ariz. R. Crim. P. 7.6(c)(1), (2). Here, the court provided
such notice to the surety. Moreover, the record did not show that Lindgren
was involved: the documents filed when Arias-Saldana posted bond
referred to Didn’t Do It and Allegheny but not to Lindgren. Appellants
suggest that the State should have intuited that a third-party indemnitor
was involved because of Arias-Saldana’s indigency, but they offer no
compelling reason to place the burden of such speculation on the State
rather than allowing the surety and the indemnitor to provide for such
notice, if desired, in their contractual relationship.
¶8 Finally, Appellants challenge the sufficiency of the evidence
to support the superior court’s decision to forfeit the bond and to forfeit the
full $100,000 rather than a lesser amount. We review the court’s forfeiture
determination for an abuse of discretion, considering the record in the light
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LINDGREN, et al. v. STATE
Decision of the Court
most favorable to sustaining the judgment. State v. Old West Bonding Co.,
203 Ariz. 468, 471, ¶ 9 (App. 2002).
¶9 The primary purpose of an appearance bond is to ensure that
a criminal defendant appears at court proceedings. State v. Garcia Bail
Bonds, 201 Ariz. 203, 208, ¶ 19 (App. 2001). Once a defendant fails to appear,
the court has discretion to forfeit all or part of the bond unless the violation
is excused. Ariz. R. Crim. P. 7.6(c)(3). At that point, the burden is on the
surety to show by a preponderance of the evidence some explanation or
other mitigating factor excusing the defendant’s non-appearance. See State
v. Bail Bonds USA, 223 Ariz. 394, 397, ¶ 11 (App. 2010). Relevant
considerations may include:
(1) whether the defendant’s failure to appear due to
incarceration arose from a crime committed before or after
being released on bond; (2) the willfulness of the defendant’s
violation of the appearance bond; (3) the surety’s effort and
expense in locating and apprehending the defendant; (4) the
costs, inconvenience, and prejudice suffered by the state as a
result of the violation; (5) any intangible costs; (6) the public’s
interest in ensuring a defendant’s appearance; and (7) any
other mitigating or aggravating factors.
Old West, 203 Ariz. at 475, ¶ 26.
¶10 Here, Appellants do not dispute that Arias-Saldana failed to
appear for the second day of trial, and they instead underscore an absence
of evidence regarding the Old West factors. Once Arias-Saldana failed to
appear, however, the burden fell not on the State to prove that forfeiture
was justified, but rather on those opposing forfeiture to prove an excuse for
Arias-Saldana’s absence and thereby show cause why the bond should not
be forfeited. See Bail Bonds USA, 223 Ariz. at 397, ¶ 11; State ex rel. Corbin v.
Superior Court, 2 Ariz. App. 257, 261 (App. 1965) (“When a defendant is
absent at the appointed time, the State has the right to a forfeiture and the
burden of proof rests with the surety to show reasonable cause.”); see also
Ariz. R. Crim. P. 7.6(c)(2)–(3). The lack of evidence on which Appellants
rely simply highlights the absence of proof of an excuse for Arias-Saldana’s
absence and thus undermines their opposition to both the fact and amount
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LINDGREN, et al. v. STATE
Decision of the Court
of forfeiture.1 Accordingly, Appellants have failed to show that the
superior court abused its discretion by forfeiting the bond in full.
CONCLUSION
¶11 The judgment is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
1 Although Appellants expressed an intent to order transcripts of the
bond forfeiture hearings and appear to cite to such transcripts in the
briefing, no transcripts were filed in this court. An appellant is responsible
for ensuring that the record on appeal includes all transcripts necessary to
resolve the issues raised on appeal. See ARCAP 11(c)(1)–(2). If the appellant
fails to do so, we presume the missing transcripts would support the
superior court’s ruling. See State ex rel. Dept. of Econ. Sec. v. Burton, 205 Ariz.
27, 30, ¶ 16 (App. 2003). Moreover, as described above, even assuming the
transcripts show a lack of evidence as Appellants claim, the absence of
evidence itself supports the court’s conclusion that Appellants failed to
show cause to avoid forfeiture.
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